N3915

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 55 OF 2009

THE STATE

V

JOE REX KUM

Kimbe: Cannings J
2009: 16, 17, 21 December,
2010: 25 January

VERDICT

CRIMINAL LAW – manslaughter – Criminal Code, Section 	302 – trial – elements – whether the accused killed the deceased – whether he acted in self-defence.

The accused was charged with the manslaughter of his brother-in-law. It was alleged that the brother-in-law (the deceased) came on to the accused's land and they had an argument, which led to the accused kicking the deceased in the ribs, rupturing his spleen and killing him. The accused denied kicking the deceased but says that if the court finds that he killed him he acted in self-defence.

Held:

(1)	The offence of manslaughter has three elements: (a) the accused killed the deceased; (b) the killing was unlawful; (c) the circumstances did not constitute wilful murder, murder or infanticide.

(2)	As to element (a): the question to ask, by virtue of the definition of "killing" in Criminal Code, Section 291, is whether the accused caused the death of the deceased directly or indirectly by any means.

(3)	The proven facts led reasonably to only one conclusion: that the accused killed the deceased.

(4)	As to element (b), the State proved beyond reasonable doubt that the accused did not believe on reasonable grounds that he could not otherwise defend himself and that he used more force than was necessary. Therefore the defence of self-defence was not available.

(5)	There was no other defence available to the accused. Therefore his killing of the deceased was unlawful.

(6)	As to element (c), the accused was not charged with wilful murder, murder or infanticide.

(7)	The State proved the three elements beyond reasonable doubt. Therefore the accused was convicted of manslaughter.

Cases cited

The following cases are cited in the judgment:

The State v Albert Gias (2005) N2812
The State v David Yakuye Daniel (2005) N2869
The State v Ephraim Ria Boa (2008) N3436
The State v Lenny Banabu (2005) N2871
The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2007, 15.12.07
The State v Sailas Anjipi CR No 1483/2006, 16.03.07

TRIAL

This was the trial of an accused charged with manslaughter.

Counsel

F Popeu, for the State
R Beli, for the accused

25 January, 2010

1. CANNINGS J: The accused, Joe Rex Kum, is charged with the manslaughter of his brother-in-law, Wainge Elias. The offence is said to have been committed at the accused's block at Galai 1 oil palm settlement near Kimbe on the morning of Friday 3 October 2008. He pleaded not guilty so a trial has been held.

2. The State's case is that the deceased came on to the accused's block and they had an argument, which led to the accused kicking the deceased under the ribs, rupturing his spleen and killing him. The accused denied kicking the deceased but says that if the court finds that he killed him he acted in self-defence.

ELEMENTS

3. Manslaughter is an offence under Section 302 of the Criminal Code, which states:

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

Penalty: Subject to Section 19, imprisonment for life.

4. This offence has three elements:

1	kill another person;
2	unlawfully;
3	under such circumstances as not to constitute wilful murder, murder or infanticide.

First element: killing another person

5. There is a definition of killing in Section 291:

Subject to the succeeding provisions of this Code, any person who causes the death of another, directly or indirectly, by any means, shall be deemed to have killed the other person.

Second element: killing must be unlawful

6. Section 289 states:

It is unlawful to kill a person unless the killing is authorised or justified or excused by law.

7. If the defence of self-defence succeeds the killing of the deceased is justified by law, not unlawful, and the accused will be acquitted.

Third element of manslaughter: no intention to kill etc

8. All that is necessary to prove here is that the circumstances in which the deceased was killed were not such as to amount to any of the other three homicide offences: wilful murder (where there must be an intention to kill); murder (which is committed where, for example, the killer intended to do grievous bodily harm to the victim or some other person); and infanticide (where a woman by wilful act or omission causes the death of her child under the age of 12 months).

ISSUES

9. The primary issues are:

1	Did the accused kill the deceased?
2	Did the accused act in self-defence?
3	Is the third element of manslaughter proven?

1 	DID THE ACCUSED KILL THE DECEASED?

10. Determination of this issue requires:

•	a summary of the evidence for the State;
•	a summary of the evidence for the defence;
•	a preliminary assessment of the State's case;
•	a summary of the defence counsel's submissions;
•	an assessment of the defence counsel's submissions; and then
•	a final determination of the question whether the accused killed the deceased.

EVIDENCE FOR THE STATE

11. It consisted of:

•	a post-mortem report and related documents;
•	the accused's record of interview;
•	oral evidence by two eyewitnesses.

Post-mortem report

12. A post-mortem examination was conducted by Dr Chris Mungkuas at Kimbe General Hospital on 29 October 2008. The cause of death was "splenic injury causing haemorrhagic shock". The doctor observed a spleen of 20 cm in size with an obvious laceration to the medial aspect of the spleen, 6 cm long and 5 cm deep, and massive internal bleeding.

Record of interview

13. The accused said that Waine entered his block and was saying a lot of bad things about him. Waine pointed his fingers at him then swung his fists and the second time landed a fist on his right eye. Then Waine picked up a pangal (palm frond) and swung that at him. The accused said he armed himself with a piece of bamboo and used it to defend himself. He did not swing his fists at the deceased. He told Waine to leave the block and he walked on to the road and fell unconscious.

Oral evidence of eyewitnesses

14. The first State witness was the deceased's wife Mai Waine. She lives at Kavui (about 10 km from Galai). Waine's father has a block close to Joe's block and they go there often. At 9.00 am she and Waine had been at his father's block. They walked towards Joe's block and she went in but Joe told her she was not welcome and to leave. She was preparing to leave when Waine came in to the block and then he and Joe started arguing. Waine asked Joe when he was going to pay bride price for his wife (Waine's sister, Betty) and when Joe heard this he jumped down from his veranda. They stood face to face, then Waine kicked him on the left side of his body under the ribs. He only kicked him once. Waine and Joe then swung at each other but missed. Waine got a palm frond and Joe got a piece of bamboo but then Waine's brother Michael Elias came in and stopped the fight. This happened in front of Joe's house. Waine did not start the fight. It all happened in front of her. They were not arguing for very long. She was inside the block about seven metres away. She and Waine then left but they did not get far, only about 20 metres along the road, before Waine collapsed. Other people came to help and they took him to Buvussi Health Centre but he was dead on arrival.

15. The second State witness was Rose Ismael. She is the accused's sister-in-law, being married to his younger brother, Clement. She lives at the accused's block. She was present at the incident. Her evidence was similar to Mai Waine's evidence. Waine followed his wife into Joe's block. Joe and Waine started arguing and after a while Joe jumped down from his house and, using his right leg, kicked Waine on his left side. Then one got a piece of bamboo and the other got a palm frond and then they dropped their weapons and swung their fists at each other, both missing. Then Waine walked off and only went a short distance before collapsing. Waine fell inside Joe's area. They argued for about 20 minutes. Joe started the fight. Waine was sick at the time.

EVIDENCE FOR THE DEFENCE

16. The accused gave sworn evidence, as did his daughter and wife.

17. Joe Rex Kum said he saw Waine's wife, Mai, on his block but he was not happy to see her. She and Waine often visit Waine's father whose block is just along the road but they never visit Joe and his family. He made some sarcastic remark to Mai like 'my house has the smell of pekpek (excreta) so what are you doing here?' Then Waine walked in to the block, arguing and pointing his finger at him and then Waine swung his fists at him. The first one missed but the second caught him on the right side of his face. Joe said both his punches missed. Then Waine got a palm frond so he (Joe) got a piece of bamboo. Waine threw the frond at him but Joe blocked it with the bamboo. Then Waine walked out and the next thing he knew people were calling out that Waine had fallen. He was surprised as when Waine left the block he was looking normal. He denied kicking Waine.

18. The second defence witness was the accused's daughter, Georgina Joe. She witnessed the fight between her father and Waine at the front of their house. Waine started the fight. They swung punches at each other. Asked whether her father kicked Waine she replied 'I did not see'. Asked whether Waine was a sick man she replied 'I do not know'. In cross-examination Georgina said that she did not know Waine very well as he does not come to their block often. She used to hear from her family that he was not a good person; so she did not like him.

19. The third and final defence witness was the accused's wife Betty Max. She was also an eyewitness. She watched what happened from under the house. Her evidence about the lead-up to the fight was the same as other witnesses. As to who started it, Waine swung at Joe and Joe fought back, she said. She did not see how many punches they threw at each other. She did not see Joe kick Waine. Waine got a palm frond and threw it at Joe but he blocked it with a piece of bamboo. Waine's small bother, Michael, was the one who stopped the fight. Waine was sick at the time. She heard stories that he had been going to the clinic.

PRELIMINARY ASSESSMENT OF THE STATE'S CASE

20. It is not disputed that there was an argument leading to a fight between the accused and the deceased. It happened at about 9.00 am in front of the accused's house. The deceased and his wife had entered the accused's block and the accused was not happy to see them because of ongoing family issues including the alleged non-payment by the accused of bride price for his wife Betty, who is the deceased's sister. During the course of the fight they swung punches at each other and each reached for a weapon (the palm frond and the bamboo).

21. What is disputed is who started the fight, ie who assaulted who first? And what blows, if any, did the accused land on the deceased? In particular did he kick him near the ribs?

DEFENCE COUNSEL'S SUBMISSIONS

22. Mr Beli submitted that the State had fallen short of proving that the accused killed the deceased but if the court finds that he did, the accused acted in self-defence. At this stage I am focussing on the first element of the offence – did the accused kill the deceased – so the question of self-defence does not yet arise.

23. Mr Beli's main submissions on the first element are that:

•	the two State witnesses gave inconsistent and unreliable evidence;
•	the evidence of the defence witnesses was credible;
•	the deceased was a sick man;
•	the State failed to show how the deceased met his death.

ASSESSMENT OF DEFENCE COUNSEL'S SUBMISSIONS

24. There were some inconsistencies between the evidence of Mai and Rose (eg for how long was the argument? who had the palm frond and who had the bamboo? where did Waine collapse?) but I did not think that they were material or that they detracted unduly from the quality of their evidence. The inconsistencies did not detract unduly from the credibility of their evidence. Mr Beli also submitted that the way they gave their evidence suggested that it was manufactured. I did not gain that impression. Both Mai and Rose were reasonably impressive witnesses. They both said that they saw Joe kick Waine on the left side of his body. This was clear evidence, consistent with the post-mortem evidence.

25. As for the defence witnesses, the accused's evidence was difficult to believe as he indicated that he failed to land a single blow on the deceased. In view of the post-mortem evidence (and the absence of any other known cause of the deceased's injuries) this is impossible to believe. Georgina and Betty were evasive when questioned about whether they saw Joe kick Waine. Their evidence was less credible than that of the State witnesses.

26. There was a paucity of evidence to support the defence proposition that Waine was sick at the time of the incident. No finding can be made that he was sick. Even if he was sick that does not prevent the conclusion that he was killed by the accused.

27. As for the alleged failure of the State to prove how the deceased was killed, that submission is neutralised by my acceptance of the evidence of the State witnesses. Joe kicked Waine under the ribs and that caused his almost instant death. This is consistent with the post-mortem evidence. Even if there were reasonable doubt about whether the State witnesses were telling the truth, the only reasonable inference that could be drawn from the evidence of there being a fight between two men and one of them dying soon afterwards from a ruptured spleen and there being no other plausible cause of death available is that the man who survived the fight killed the man who died. Whether he killed him by kicking him or punching him or throwing him against something, the only conclusion that could be reached is that he caused his death. The medical evidence reveals that the deceased died due to a ruptured spleen. A spleen does not normally rupture spontaneously. It is well known that it is exceedingly rare for a spleen to rupture in that way. It almost invariably requires the infliction of considerable force by a blunt object. It can be caused by a heavy fall on to an object such as a tree stump or by a substantial blow to the abdomen or back, eg by a kick or a punch.

FINAL DETERMINATION OF WHETHER THE ACCUSED KILLED THE DECEASED

28. The evidence is clear that the accused killed the deceased and did so by kicking him on the side of the body, under the ribs.

2 	DID THE ACCUSED ACT IN SELF-DEFENCE?

29. Mr Beli submits that the accused acted in self-defence and relies on Section 269 (self-defence against unprovoked assault) of the Criminal Code which states:

(1)	When a person is unlawfully assaulted and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make an effectual defence against the assault, if the force used is not intended to cause, and is not likely to cause, death or grievous bodily harm.

(2)	If—

(a)	the nature of the assault is such as to cause reasonable apprehension of death or grievous bodily harm; and
(b)	the person using force by way of defence believes, on reasonable grounds, that he cannot otherwise preserve the person defended from death or grievous bodily harm,

it is lawful for him to use such force to the assailant as is necessary for defence, even if it causes death or grievous bodily harm.

30. The accused is relying on Section 269(2), which means that the court must be satisfied that the following five elements exist:

1	the accused was unlawfully assaulted; and

2	the accused did not provoke the assault; and

3	the nature of the assault was such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm; and

4	the accused believed on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm; and

5	the accused used such force as was necessary for his defence.

31. If all those elements exist the force used by the accused is lawful even though it has caused the death of the assailant.

32. Once the accused puts evidence of self-defence the onus rests on the State to disprove the defence. If the State cannot disprove at least one of those elements – ie where all of them exist – the defence of self-defence will succeed. Authorities for these principles are referred to in my decisions in The State v Albert Gias (2005) N2812, The State v Lenny Banabu (2005) N2871 and The State v Sailas Anjipi CR No 1483/2006, 16.03.07 (where the defence of self-defence succeeded) and The State v David Yakuye Daniel (2005) N2869, The State v Paul Gambu Laore & 11 Others CR Nos 914-925/2007, 15.12.07 and The State v Ephraim Ria Boa (2008) N3436 (where the defence failed).

The defence evidence

33. There is sufficient evidence before the court for the accused to legitimately raise self-defence. Whether it is a valid defence depends on whether the prosecution can discharge the onus of proving beyond reasonable doubt that one or more of the elements of this defence did not exist.

Questions to be answered

34. I will restate the elements of the defence by posing five questions:

1	was the accused, Joe Rex Kum, unlawfully assaulted?

2	did Joe not provoke the assault?

3	was the nature of the assault such as to cause reasonable apprehension on Joe's part that he would die or suffer grievous bodily harm?

4	did Joe believe on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm?

5	did Joe use only such force as was necessary for his defence?

35. The State must prove that the answer to one or more of these questions is 'no'. If it cannot do this, all elements are presumed proven and the defence of self-defence will operate.

36. I will now address each question in turn.

1	Was the accused unlawfully assaulted?

37. Put another way: did Waine assault Joe unlawfully? There is a definition of assault in Section 243(1) of the Criminal Code, which states:

A person who—

(a)	directly or indirectly strikes, touches or moves, or otherwise applies force to, the person of another, without his consent, or with his consent if the consent is obtained by fraud; or

(b)	by any bodily act or gesture attempts or threatens to apply force to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose,

is said to assault that other person, and the act is called an assault.

38. I find as a fact that Waine came on to Joe's block without Joe's consent and that he used threatening words and gestures towards Joe. He was threatening to apply force to Joe without Joe's consent in circumstances where he had apparently a present ability to effect that purpose. I conclude that Waine unlawfully assaulted Joe. The answer to question (1) is yes.

2	Did the accused not provoke the assault?

39. Waine was the one who came on to Joe's land without permission. Once Joe had told Mai to leave, Waine should have stayed outside on the road. I find that Joe did not provoke the assault. The answer to question (2) is yes.

3	Was the nature of the assault such as to cause reasonable apprehension on the part of the accused that he would die or suffer grievous bodily harm?

40. Joe's evidence, which was corroborated by other defence witnesses and also the State witnesses, is that Waine at one stage got a palm frond and used it as a weapon. A palm frond, used in a skilful way, can become a spear – a lethal weapon. However, the State has proven that Joe kicked Waine near the ribs before Waine got the palm frond. The assault that led to Joe kicking Waine was the use of threatening words and gestures. The answer to question (3) is no.

4	Did the accused believe on reasonable grounds that he could not otherwise preserve himself from being killed or suffering grievous bodily harm?

41. Joe made a pre-emptive strike by kicking Waine. There were other things he could have done to prevent Waine striking him. The answer to question (4) is no.

5	Did the accused use only such force as was necessary for his defence?

42. Joe used more force than was necessary, given the threat of harm he was facing. The answer to question (5) is no.

Conclusion re self-defence

43. The State has proven beyond reasonable doubt that three of the elements do not exist. It only had to disprove one of them. Therefore the defence fails. As no other defence is available to the accused, his killing of the deceased was unlawful. The second element of the offence of manslaughter has been proven.

3 	WAS THE THIRD ELEMENT OF MANSLAUGHTER PROVEN?

44. Yes. This element is a formality as the accused was not charged with wilful murder, murder or infanticide.

VERDICT

45. Joe Rex Kum, having been indicted on a charge of manslaughter under Section 302 of the Criminal Code, is found guilty of manslaughter.

Verdict accordingly.
____________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused